Rule 813. Procedure When Incapacitated Person Not Designated as Such.
A. Except as provided in subdivisions B and C of this rule, if during the pendency of the action the magisterial district judge finds that a party not designated in the complaint as an incapacitated person represented by a guardian is an incapacitated person, the magisterial district judge shall dismiss the proceeding without prejudice. Such a finding shall be based on the fact that the party has a guardian appointed by a court of competent jurisdiction pursuant to 20 Pa.C.S § 5511.
B. If the party as to whom such a finding is made is one of several plaintiffs or defendants, the proceedings shall be dismissed only as to the incapacitated person.
C. A complaint filed by a party who is an incapacitated person but not designated as such in the complaint may be amended by the incapacitated person’s guardian, at any time during the pendency of the action before judgment, to state that the party is an incapacitated person represented by a guardian. A complaint filed against a party who is an incapacitated person but not designated as such may be amended to state that the party is an incapacitated person represented by a guardian only with the written consent of the guardian, which shall be attached to the record copy of the complaint form.
Official Note
With the exceptions stated, subdivision A of this rule requires that the proceedings be dismissed without prejudice when the magisterial district judge finds that a party not designated in the complaint as an incapacitated person represented by a guardian is actually an incapacitated person, that is, one who already has a guardian appointed pursuant to 20 Pa.C.S. § 5511 (see Rule 801(3)). This rule is intended to take care of a situation in which the appointment of a guardian is not disclosed or not known at the time the complaint is filed.
The exception in the first sentence of subdivision C contemplates a case in which the incapacitated person files a complaint without disclosing the appointment of a guardian and this fact comes to light during the pendency of the action. This exception will allow the guardian to make what is in effect a ratifying amendment to the complaint, so that the case can go on to judgment. The exception in the second sentence of subdivision C permits an amendment with the written consent of the guardian in actions brought against undesignated incapacitated persons, the guardian’s consent being required because service will not normally have been made upon the guardian under these circumstances and to allow reissuance and new service of the complaint, as amended, would be incompatible with the general civil procedure for magisterial district judges. Neither of the amendments provided for in subdivision C need be made in compliance with Rule 316 or Rule 509.
Source The provision of this Rule 813 amended March 13, 2015, effective April 12, 2015, 45 Pa.B. 1492. Immediately preceding text appears at serial pages (309571) to (309572).
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